Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated November 9, 2006, which granted respondent summary judgment dismissing the petition in a holdover summary proceeding.

PER CURIAM:

Order (Jean T. Schneider, J.), dated November 9, 2006, affirmed, with $10 costs.

Respondent established, prima facie, her right to succeed to the subject apartment under New York City Rent and Eviction Regulations (9 NYCRR) §2204.6(d)(1) through evidence demonstrating that the apartment was her primary residence between the time of her marriage to the tenant of record and the latter's death. In opposition, petitioner
failed to raise a triable issue of fact. The tenant's health-related absence from the apartment for a portion of the operative succession period is insufficient, without more, to raise a triable issue as to whether respondent "resided with" the tenant as that term is used in the governing regulations. Petitioner should not "now be heard to invoke [this] claimed indicia of the tenant's putative nonprimary residence as a means of countering [respondent's] otherwise meritorious succession defense, inasmuch as petitioner failed to initiate the proper procedure for terminating the [tenancy] on nonprimary residence grounds during [his] tenancy" (Fourth Lenox Terrace Assoc. v Wilson, 15 Misc 3d 113, 115 [2007]). We reach no other issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
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Decision Date: April 2, 2008